[Cite as State v. Frazier,

.] STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 16 BE 0040 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) CLIFF ALFRED CERO FRAZIER ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 16 CR 085

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Daniel P. Fry Belmont County Prosecutor Atty. Scott A. Lloyd Assistant Prosecuting Attorney 147-A West Main Street St. Clairsville, Ohio 43950

For Defendant-Appellant: Atty. Timothy Young Ohio Public Defender Atty. Allen M. Vender Assistant State Public Defender 250 East Broad Street, 14th Floor Columbus, Ohio 43215

JUDGES:

Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb Dated: November 13, 2017 [Cite as State v. Frazier,

.] WAITE, J.

{¶1} Appellant Cliff Alfred Cero Frazier appeals his conviction in Belmont

County Common Pleas Court for felonious assault. Appellant raises two issues on

appeal. The first is whether his trial counsel was ineffective for failing to request a

jury instruction on aggravated assault, an inferior degree offense of felonious assault.

The second is whether the verdict was against the manifest weight of the evidence.

Based on the record, it is clear that trial counsel was not ineffective and the

conviction was not against the manifest weight of the evidence. Appellant’s

assignments of error are without merit and the judgment of the trial court is affirmed.

Factual and Procedural Background

{¶2} Kelli Mitchell (“Mitchell”) had maintained romantic relationships with

both Neal Bledsoe (“Bledsoe”) and Appellant in the past. Mitchell was at one time

engaged to Bledsoe but had broken the engagement and had begun a relationship

with Appellant. At the time of the incident, Bledsoe was fifty-four years of age and

had been employed as a construction worker and bouncer. He also had experience

teaching self-defense and played two years of semiprofessional football. Appellant

was forty-eight years of age and worked as an auto mechanic.

{¶3} In early February of 2016, Mitchell decided to end her relationship with

Appellant, who was living with her and her two minor daughters. Initially, Appellant

refused to leave the premises but ultimately agreed to move out. Mitchell decided

that in order to avoid conflict she would leave the house for a week and stay with

Bledsoe, giving Appellant time to remove his belongings and vacate the premises.

Mitchell’s ten year old daughter went to stay with her grandmother during this time. -2-

Mitchell’s sixteen year old daughter remained in the house with Appellant, but was

only home to sleep. On February 8, 2016, Mitchell asked Bledsoe to take her back to

the house and help replace the locks, as the older daughter told Mitchell that

Appellant had moved out. On arriving at the home, Mitchell’s dog got loose and

Mitchell and her ten year old daughter went after the dog. Appellant was apparently

driving past the residence and saw Mitchell and her daughter outside. Appellant

offered to assist in getting the dog back. The dog was located and was taken back

home with Mitchell’s daughter, but Appellant and Mitchell remained outside in an

alley behind the house to have a conversation. When her daughter and dog went

into the house without Mitchell, Bledsoe asked the girl where her mother was. The

daughter informed him that she was outside talking to Appellant. Bledsoe sent the

older daughter out to ask Mitchell to return inside. The daughter returned, but said

that her mother refused. Bledsoe called Mitchell’s cell phone but Mitchell did not

answer. The older daughter told Bledsoe to go outside and get her mother. Bledsoe

testified that he was originally reluctant, but ultimately went outside looking for

Mitchell.

{¶4} Once in the alley, he noted that Mitchell was crying and that she and

Appellant were engaged in an emotional conversation. Bledsoe approached Mitchell,

took her by the arm, and told her to come back in the house with her daughters.

Mitchell replied, “I’m talking to Cliff right now. I’m a grown woman. I can come when

I’m done.” (Tr., p. 186.) Appellant then told Bledsoe to respect Mitchell’s wishes and

told him to leave. Mitchell testified that the two men began arguing and were “getting -3-

louder and louder with arguments. [Bledsoe] was asking [Appellant] what do you

want to do, what do you want to do about it. [Appellant] was calm.” (Tr., p. 187.)

{¶5} Bledsoe and Appellant gave differing versions of events about the

escalation of the confrontation. Bledsoe testified that he was still holding Mitchell’s

arm when he felt a hand across his chest which he believed was Appellant’s.

Bledsoe got into a defensive stance preparing for an attack when he noticed that he

was bleeding profusely from his neck. (Tr., p. 171.) Bledsoe said he turned to leave

but Appellant followed him, repeating multiple times, “you’re going to bleed out” to

Bledsoe.

Bledsoe testified that he walked to the next block and flagged down a

passer-by, who drove him to the hospital emergency room where he was treated for

his wounds; a slice directly across his neck which lacerated both jugular veins.

{¶6} Appellant testified that when Bledsoe came out into the alley, he was

forceful with Mitchell about going into the house and would not let go of her arm.

Appellant told the police in his initial interview that Bledsoe struck him first, but later

testified at trial that Bledsoe’s punch landed on Appellant simultaneously with his own

stab to Bledsoe’s neck. (Tr., p. 320.)

{¶7} Appellant said that after the altercation, he went to his truck, left the

razor blade he had used to cut Bledsoe in his work glove inside of his toolbox, and

then put both into the covered bed of the truck. Appellant let himself inside Mitchell’s

house, where he informed Mitchell that Bledsoe punched him, but did not inform her

that he had stabbed Bledsoe. While at the hospital, Bledsoe identified Appellant as

his assailant. A short time later two police officers went to Mitchell’s home and -4-

arrested Appellant. After being handcuffed, as he was being led to the police car,

Appellant asked why he was being arrested. The officer informed him that he had

been accused of stabbing Bledsoe. After Appellant was read his Miranda rights, he

told police that Bledsoe struck him first and that he “hits like a bitch.” He did not

initially indicate that he was afraid of Bledsoe or that he was defending himself or

Mitchell against Bledsoe. He also told the officers that he had dropped the weapon

on the ground and did not immediately admit that he had hidden it in his truck. (Tr.,

pp. 217, 219, 239.) At trial, Appellant admitted that Bledsoe did not hit him first and

that he never told the police he was acting in Mitchell’s defense. (Tr., p. 319.)

{¶8} Mitchell testified that both Appellant and Bledsoe had been mentally

abusive but that she had never suffered physical violence from either man. She

testified that she and Bledsoe were friends, and that she approached him with her

request to stay with him while Appellant was packing and moving out of her home.

She testified that on the day of this incident she voluntarily remained in the alley to

speak with Appellant, describing herself as “[a]n emotional wreck” and stating that

she “was crying, confused. I still felt love for him but being manipulated.” (Tr., p.

186.) Mitchell testified that she did not see who struck first during the altercation and

that at no time did she believe Bledsoe was threatening her or that she was in any

danger. (Tr., p. 188.)

{¶9} On April 6, 2016, Appellant was indicted on one count of felonious

assault in violation of R.C. 2903.11. A jury trial was held on June 14-15, 2016. At

trial Appellant raised the affirmative defenses of self-defense and defense of others. -5-

The jury found Appellant guilty. Appellant was sentenced to eight years in prison on

July 18, 2016. Appellant brings this appeal asserting two assignments of error.

ASSIGNMENT OF ERROR NO. 1

CLIFF FRAZIER RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL BECAUSE HIS ATTORNEY FAILED TO REQUEST JURY

INSTRUCTIONS FOR AGGRAVATED ASSAULT, WHICH IS AN

INFERIOR-DEGREE OFFENSE OF FELONIOUS ASSAULT. SIXTH

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION; ARTICLE I, SECTIONS 1 AND 10, OF THE OHIO

CONSTITUTION; STRICKLAND v. WASHINGTON,

,

104 S.CT. 2052, 80 L.ED.2D 674 (1984); STATE v. BRADLEY, 42

OHIO ST.3D 136, 538 N.E.2D 373 (1989); TR. 331-349.

{¶10} Appellant was charged with felonious assault in violation of R.C.

2903.11 and the jury was instructed on the elements of felonious assault. Appellant

contends trial counsel was ineffective for failing to request an instruction on

aggravated assault.

{¶11} In a claim for ineffective assistance of counsel, a court must indulge in a

strong presumption that counsel’s performance fell within the wide range of

reasonable professional assistance. Appellant bears the burden of demonstrating

that counsel’s performance fell below an objective standard of professional

competence. If an appellant successfully demonstrates that counsel committed

professional error, he must also show that he was prejudiced by that deficiency. -6-

Strickland v. Washington,

,

,

(1984).

“Deficient performance” means performance falling below an objective standard of

reasonable representation.

. “Prejudice,” in this context, means a

reasonable probability that but for counsel's errors, the result of the proceeding would

have been different.

.

{¶12} An “ineffectiveness claim * * * is an attack on the fundamental fairness

of the proceeding.” “[T]he ultimate focus of inquiry must be on the fundamental

fairness of the proceeding whose result is being challenged.”

. An

appellant's burden when challenging the effectiveness of counsel is to demonstrate

that some action or inaction by counsel operated to undermine or call into question

the integrity of the process that resulted in conviction. State v. Calhoun,

,

(1999).

{¶13} The definition of felonious assault is found in R.C. 2903.11(A)(2) and

states, in part: “No person shall knowingly * * * [c]ause or attempt to cause physical

harm to another.” This contrasts with aggravated assault, where:

No person, while under the influence of sudden passion or in a sudden

fit of rage, either of which is brought on by serious provocation

occasioned by the victim that is reasonably sufficient to incite the

person into using deadly force, shall knowingly:

***

Cause or attempt to cause physical harm to another. -7-

R.C. 2903.12(A)(2). Aggravated assault, then, contains the mitigating circumstances

of passion and provocation not found in the definition of felonious assault.

{¶14} Pursuant to statute, aggravated assault is not a lesser included offense

of felonious assault. Instead it is an inferior degree offense. State v. Deem,

. A trial court may give an instruction on the inferior offense of

aggravated assault, when requested, only if there is evidence presented at trial on

which the jury could reasonably acquit the defendant for the principal crime as

charged, yet convict on the inferior offense.

at paragraph four of the syllabus.

{¶15} In this case, trial counsel did not request an instruction on aggravated

assault. Failure to request an instruction on an inferior degree offense may be a

matter of trial strategy. State v. Walker, 4th Dist. No. 99CA2494,

(Jun. 26, 2000). When the defendant relies on the theory of self-defense, an

instruction on the inferior degree offense may serve to confuse the jury, as it appears

to contradict the theory of self-defense. Defense of self or others relies on fear of

imminent bodily harm or death. Aggravated assault is based on acting in a sudden fit

of passion or rage, and is not based on a defendant’s fear of harm. Trial counsel

may have considered this confusion by deciding not to argue both that the defendant

acted in fear of his life but at the same time was provoked and acted in a fit of rage.

Legitimate trial strategies do not form the basis for ineffective assistance of counsel

claims. State v. Leonard,

,

, ¶ 146.

{¶16} Moreover, the facts in this record do not justify an instruction on

aggravated assault. In order to request this instruction, the evidence would have to -8-

demonstrate that Appellant was subjected to serious provocation by Bledsoe which

was great enough to cause sudden passion or rage, inciting him to stab Bledsoe.

The testimony from all three witnesses, Bledsoe, Mitchell, and Appellant himself,

indicates that, at best, it is unclear who acted first. Witnesses agree that Appellant

arrived at the scene already armed with a razor blade. This preparation alone would

seem to indicate that whatever provoked Appellant to stab Bledsoe, it was not

caused by a sudden fit of rage. The evidence also reveals that Bledsoe retreated

after being stabbed, while Appellant continued to follow him, taunting him that he

would “bleed out.” While the two men engaged in an escalation of their verbal

argument, this does not appear to have been suddenly ignited by any action on the

part of Bledsoe, at least in sufficient degree to justify Appellant’s use of a razor to

stab Bledsoe. At trial, Appellant never stated that he was threatened by or afraid of

Bledsoe and testified that he stabbed Bledsoe simultaneously with Bledsoe’s punch.

It is clear the parties disliked each other and that was perhaps provoked by the

presence of Mitchell and her emotional state, but no witness testified to any action

that would spark the kind of provocation necessary to justify an instruction on

aggravated assault. “To be serious, the provocation must bring on extreme stress

and be reasonably sufficient to incite the defendant into using deadly force.” State v.

Combs, 5th Dist. No. 2001 CA 00222,

, ¶ 18, citing Deem, at

paragraph five of the syllabus.

{¶17} For these reasons alone we cannot conclude that trial counsel was

ineffective. A review of all evidence presented at trial reveals no basis to support a -9-

jury instruction on aggravated assault. Appellant’s first assignment of error is without

merit and is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT VIOLATED CLIFF FRAZIER'S RIGHTS TO DUE

PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT

OF CONVICTION FOR FELONIOUS ASSAULT AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE. FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE OHIO

CONSTITUTION; STATE v. THOMPKINS, 78 OHIO ST.3D 380, 387,

678 N.E.2D 541 (1997); JULY 20, 2016 JOURNAL ENTRY.

{¶18} Weight of the evidence concerns “the inclination of the greater amount

of credible evidence, offered in a trial, to support one side of the issue rather than the

other.” (Emphasis deleted.) State v. Thompkins,

,

(1997). “Weight is not a question of mathematics, but depends on its

effect in inducing belief.” (Emphasis deleted.)

{¶19} When reviewing a manifest weight of the evidence argument, a

reviewing court must examine the entire record, consider the credibility of the

witnesses and determine whether, in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.

. Only in

exceptional circumstances will a conviction be reversed as against the manifest -10-

weight of the evidence.

This strict test for manifest weight acknowledges that

credibility is generally the province of the factfinder who sits in the best position to

accurately assess the credibility of the witnesses. State v. Hill,

,

(1996); State v. DeHass,

,

(1967).

{¶20} Appellant claims that his conviction is against the manifest weight of the

evidence because the evidence “overwhelmingly” demonstrates he acted in self-

defense and defense of others. Self-defense is an affirmative defense.

To establish self-defense, a defendant must prove *** (1) that the

defendant was not at fault in creating the situation giving rise to the

affray; (2) that the defendant had a bona fide belief that he was in

imminent danger of death or great bodily harm and that his only means

of escape from such danger was in the use of such force; and (3) that

the defendant did not violate any duty to retreat or avoid the danger.

State v. Cassano,

,

, quoting State v.

Barnes,

,

.

{¶21} To assert an affirmative defense of defense of others a defendant must

prove that he was protecting another person from immediate danger of bodily harm

and that the other person would be able to assert the defense for him- or herself.

State v. Wenger,

,

(1979). A defendant invoking

the defense of others defense is only entitled to use as much force as the person

being defended would be permitted to use.

-11-

{¶22} Bledsoe and Appellant have contradictory versions of what occurred on

the night of the altercation. Bledsoe testified that he went outside only after being

prompted by Mitchell’s daughter to get her mother. He says he was merely trying to

get Mitchell to go back into the house when he was attacked by Appellant. Appellant

testified that he only attacked when Bledsoe kept holding Mitchell’s arm. Appellant

also testified that while Bledsoe punched him, the punching and stabbing took place

at “the same time,” which works completely against his theory of self-defense. Police

noted a red mark above Appellant’s eye and a bit of dried blood under his nose.

Bledsoe had both jugular veins cut, requiring two surgeries. Appellant argues

Bledsoe was a large man who worked occasionally as a bouncer at a bar and played

two years of semi-professional football; however, Appellant arrived at the scene

already carrying a razor blade, which he promptly concealed in his truck after the

altercation.

{¶23} We also note that while Appellant claimed at trial that he feared

Bledsoe and that he believed Mitchell was in some danger, this is clearly not what he

told police immediately after his arrest. He never relayed to police that he feared

Bledsoe and, in fact, Appellant stated that Bledsoe “hits like a bitch” more than once.

{¶24} For her part, Mitchell testified that she was never afraid of Bledsoe

during the altercation and that she never expressed any fear to Appellant. Mitchell

could not confirm who began the physical altercation. She claims she was not aware

that Appellant had been punched, nor that Appellant stabbed Bledsoe, until

sometime later in the evening. -12-

{¶25} The two versions of events put forth by Bledsoe and Appellant differ.

Bledsoe claims that Appellant was the initial aggressor. Bledsoe’s version clearly

does not help support Appellant’s theories of affirmative defense. Portions of

Appellant’s own testimony also undermine his theory of self-defense and defense of

others. As discussed, Mitchell’s testimony also does not help Appellant. A review of

the record reveals that both Bledsoe and Appellant have credibility problems.

Questions of credibility are to be resolved by the jury. In determining whether a

judgment is against the manifest weight of the evidence, an appellate court must “be

guided by a presumption that the findings of the trier-of-fact were indeed correct.”

Seasons Coal Co. v. Cleveland,

(1984). The finder of fact is

best able to “view the witnesses and observe their demeanor, gestures and voice

inflections, and use these observations in weighing the credibility of the proffered

testimony.”

{¶26} Even disregarding credibility issues, however, Appellant never offered

any evidence in support of his affirmative defenses. He offered no evidence that he

was in fear of great bodily harm or death on his own behalf or on Mitchell’s at the

time he stabbed Bledsoe. His testimony actually contradicted this requirement at

times. Given the evidence in the record, we do not find that the verdict was against

the manifest weight of the evidence. Appellant’s second assignment of error is

without merit and is overruled.

{¶27} Based on the above, Appellant’s trial counsel was not ineffective and

Appellant’s conviction on felonious assault was not against the manifest weight of the -13-

evidence presented. Appellant’s assignments of error are without merit and the

judgment of the Belmont County Court of Common Pleas is affirmed.

DeGenaro, J., concurs.

Robb, P.J., concurs.